§ 223. Fructus industriales and fructus naturales.

224. Rights as between tenants of successive estates.
225.

Succession on death of owner.

226. Sale or conveyance of land.

227.

228.

229.

230.

Liability for debts.

Severance from the land-Separate sale.

Border trees.

Agreements for the division of crops.

IV. FIXTURES AND IMPROVEMENTS.

231.

General considerations as to fixtures.

232. The intention of the annexor.

233.

Attachment to the land.

234. The character of the thing annexed.

235. Agreement as to character of thing annexed. Severance-Actual and constructive.

236.

237. Conveyance or sale of land.

238. Mortgage on land.

239. Succession on death of landowner.

240. Removable fixtures.

241. Compensation for improvements 242. Divided ownership of building.

V. MANURE.

VI.

243. Effect of conveyance of land.

244. Rights as between landlord and tenant.

245. Manure as real or personal property.

RIGHTS OF USER-WASTE,

246. Rights as determined by the quantum of estate. 247.

General considerations as to waste.

248. Earth and minerals.

266.

Non-navigable streams.

267. Lakes and ponds.

268. Riparian rights of access.

269. Erections and reclamations on the shore.

270. Rights as to ice.

X. ANIMALS AND FISH.

271. Animals

272. Fish.

I. GENERAL RIGHTS ABOVE AND BELOW THE SURFACE.

The owner of land has the absolute control of the space above the surface of the land, and also presumptively owns the land beneath the surface. The surface and strata thereunder may, however, be owned by different persons.

217. Rights above the surface.

The ownership of the surface of land includes the exclusive right to use and control the space above it to an indefinite distance.1 Consequently, any infringement by another person of the freedom of such space, as by allowing the eaves or wall of a building, or the branches of a tree,3 to project thereon from adjoining land, is a nuisance. On the same principle, the owner of land has the right to object to the stretching of a telegraph or other wire in the space above his land. But though entitled to remove or enforce the removal of the thing thus constituting a nuisance, he has no right of ownership therein merely because, without being attached to his land, it is suspended over it."

218. Rights below the surface.

The owner of the surface of land is prima facie the owner of the soil or mineral deposits to the center of the earth," and any underground encroachment by an adjoining owner

1 Co. Litt. 4a; 2 Bl. Comm. 18; 3 Kent, Comm. 401.

2 Baten's Case, 9 Coke, 53b; Meyer v. Metzler, 51 Cal. 142; Copper v. Dolvin, 68 Iowa, 757, 56 Am. Rep. 872; Murphy v. Bolger, 60 Vt. 723.

Hoffman v. Armstrong, 48 N. Y. 201, Finch's Cas. 97; Grandona v. Lovdal, 70 Cal. 161, Finch's Cas. 99. See post, 229.

• Boards of Works for Wandsworth Dist. v. United Telephone Co., 13 Q. B. Div. 904.

• Hoffman v. Armstrong, 48 N. Y. 201, Finch's Cas. 97; Skinner v. Wilder, 38 Vt. 115, Finch's Cas. 154; Lyman v. Hale, 11 Conn. 177, 1 Gray's Cas. 546.

6 Co. Litt. 4a; 2 Bl. Comm. 18; Adam v. Briggs Iron Co., 7 Cush. (Mass.) 361; Hague v. Wheeler, 157 Pa. St. 324.

is a trespass or nuisance.' Land may, however, be divided horizontally for purposes of ownership, the surface belonging to one person, and a stratum below the surface to another, this frequently occurring in the case of a conveyance of the minerals separate from the surface.

II. EARTH AND MINERALS.

The earth and minerals are, while in place, real things, belonging presumptively to the owner of the surface of the land, and become personalty only on severance. Rights as to minerals may be created in a person other than the owner of the surface of the land, either by the conveyance of the minerals as a separate corporeal thing, or by the grant of a right to take minerals from the land. Sometimes a lessee of the land has the right to take minerals as an incident of his limited ownership.

Mineral oils and gases belong to the owner of the surface if he extracts them from the earth before they escape into another's land.

219. Individual rights of ownership.

The ownership of land prima facie includes the soil or earth, and also the minerals in or on the ground, and consequently the tenant in fee simple of the land is the owner of all deposits or strata of clay, stone, iron, and other mineral substances, and such substances, while thus in place,

Pile v. Pedrick, 167 Pa. St. 296, 46 Am. St. Rep. 677; Buckingham v. Elliott, 62 Miss. 296, 52 Am. Rep. 188.

8 Stoughton v. Leigh, 1 Taunt. 402, 6 Gray's Cas. 729; Wilkinson ▼. Proud, 10 Mees. & W. 33; Lillibridge v Lackawanna Coal Co., 143 Pa. St. 293; Lee v. Bumgardner, 86 Va 315. See post, § 219.

• Egremont Burial Board v. Egremont Iron Ore Co., 14 Ch. Div. 158; Adam v. Briggs Iron Co., 7 Cush. (Mass.) 361; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476; Stratton v. Lyons, 53 Vt. 641. So it has been held that an aerolite constitutes a part of the land, and belongs to the owner thereof. Goddard v. Winchell, 86 Iowa, 71, Finch's Cas. 109.

are things of a real, and not a personal, character.10 The minerals or the soil may, however, be removed from their natural position in or on the ground, and, when thus severed from the land by one authorized to make the severance, they become personalty, even though they still remain on or below the surface of the land.11

The part of the land consisting of minerals, or of specified minerals, may be made the subject of separate ownership, this being the result either of a grant of the minerals by the owner of the land,12 or of a grant of the land with an exception of the minerals.18 Upon such separation of ownership, an estate in fee simple is created in the minerals, as corporeal things real.14

To be distinguished from rights of ownership in minerals in place are rights to extract minerals from land belonging to another, the minerals remaining the property of the land

10 People v. Williams, 35 Cal. 671; State v. Burt, 64 N. C. 619. See post, § 222.

11 Noble v. Sylvester, 42 Vt. 146, 1 Gray's Cas. 758, Finch's Cas. 114; Forbes v. Gracey, 94 U. S. 762; Brown v. Morris, 83 N. C. 251; Lyon v. Gormley, 53 Pa. St. 261; McGonigle v. Atchison, 33 Kan. 726, Finch's Cas. 65; Lyken's Valley Coal Co. v. Dock, 62 Pa. St. 232. But they remain things of a real nature if removed by natural causes. State v. Burt, 64 N. C. 619. As to constructive severance of the soil, see Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476.

12 Stoughton v. Leigh, 1 Taunt. 402, 6 Gray's Cas. 729; Caldwell v. Fulton, 31 Pa. St. 475, Finch's Cas. 102; Kincaid v. McGowan, 88 Ky. 91; Chester Emery Co. v. Lucas, 112 Mass. 424; Wardell v. Watson, 93 Mo. 107; Edwards v. McClurg, 39 Ohio St. 41; Lee v. Bumgardner, 86 Va. 315.

13 Snoddy v. Bolen, 122 Mo. 479; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538; Sloan v. Lawrence Furnace Co., 29 Ohio St. 568; Whitaker v. Brown, 46 Pa. St. 197; Lillibridge v. Lackawanna Coal Co., 143 Pa. St. 293; Kincaid v. McGowan, 88 Ky. 91.

14 Manning v. Frazier, 96 Ill. 279; Sloan v. Lawrence Furnace Co., 29 Ohio St. 568,